A. A. Electric Machinery Co. v. Block

• Decision Date: 11 February 1946
• Docket Number: No. 20635.,20635.
• Citation: 193 S.W.2d 631
• Parties: A. A. ELECTRIC MACHINERY CO., Inc., v. BLOCK.
• Court: Missouri Court of Appeals

193 S.W.2d 631

A. A. ELECTRIC MACHINERY CO., Inc., v. BLOCK.

No. 20635.

Kansas City Court of Appeals. Missouri.

February 11, 1946.

Appeal from Circuit Court, Buchanan County; Maurice Hoffman, Judge.

Action by the A. A. Electric Machinery Company against Nate Block upon an account covering goods, wares and merchandise. Judgment for plaintiff in the sum of $482.51, and plaintiff appeals, urging that judgment should have been in the amount of $2,082.61.

Reversed and cause remanded with directions to enter judgment for plaintiff in the sum of $2,082.61 with interest.

Tyree G. Newbill and W. Arnold Brannock, both of Kansas City, and John Muster, of St. Joseph, for appellant.

Strop & Strop, of St. Joseph, for respondent.

BLAND, Presiding Judge.

This is an action upon an account. The case was tried before the court, without the aid of a jury, resulting in a judgment in favor of the plaintiff in the sum of $482.51. Plaintiff has appealed.

The account covered goods, wares and merchandise sold by plaintiff to the defendant during the years 1930, 1931 and 1933. Defendant admitted liability as to the items sold during the year 1933. He denied liability for those sold prior thereto, claiming that these were purchased by the Williams Theatre Company whose name was afterwards changed to the Edmond Theatre Company. The judgment for plaintiff was the result of this admission of liability by defendant, the court having found that defendant was not liable for the items sold in 1930 and 1931. If defendant was liable for the entire account, the balance due, after allowing for credits by reason of payments made on the indebtedness, is $2082.61. Plaintiff has appealed, urging that the judgment should have been in this amount.

Plaintiff's witness, Mr. Amoneno, testified that he was the treasurer-manager of the plaintiff corporation, with offices in Kansas City; that in the year 1930 Mr. Williams, manager of the Orpheum Theatre in St. Joseph, called him by telephone and the witness went to St. Joseph and met Mr. Williams and the defendant; that Williams had a list of equipment needed for the theatre and "wanted to know if I could take care of him and I said `Yes', and so Mr. Block (defendant) said, `Well', he said, `Whatever we need we have got to have'. And the stuff was shipped to the Orpheum Theatre at St. Joseph, Missouri." Defendant was one of the owners of the theatre building and was president of the Williams Theatre Company as well as the Edmond Theatre Company, claimed by him to have been lessees.

The witness further testified that it was the custom in the theatre business for a theatre to be known by a particular name and, in this instance, the theatre was known as the Orpheum Theatre and that no one ever told him that defendant did not own the equipment. He further testified that certain of the articles sold in 1931 were sold to the defendant in his private office in St. Joseph (apparently at another place than the theatre); that he never talked to anyone at the Orpheum Theatre save the defendant; that the defendant told him that the goods should be billed to the Orpheum Theatre and that he would pay the bills; that defendant told him he owned the Orpheum Theatre and that he was doing business under that name; that about 30 days after the equipment sold in 1933 was installed he talked to defendant in St. Joseph concerning the balance due on the account and the payment of it, and defendant promised to pay it and, later, he telephoned defendant concerning its payment and defendant sent him a check for $100 on January 23, 1933. The letter in which the check was enclosed read as follows: "Enclosed find check for $100.00 as per my promise to you last Saturday". It is signed "Nate Block".

On cross-examination he testified that he had no knowledge of any amusement company known as the Edmond Theatre Company operating as the Orpheum Theatre until after this suit was filed; that he knew of no payments made to the plaintiff by the Edmond Theatre Company.

It appears that the Orpheum Theatre was destroyed by fire in 1933. It was the goods purchased in connection with the rebuilding of the theatre building, of which defendant was part owner, for which defendant admitted liability. However, Mr. Amoneno testified, on cross-examination, that he had had discussions with defendant prior to the fire, as well as thereafter; that he talked with defendant "In the spring of 1931 and several times after that on different purchases that he made from time to time.

"Q. Did he call you personally about those purchases? A. He sure did.

"Q. And told you to send them to the Orpheum Theatre? A. He sure did.

"Q. He didn't tell you he was personally buying them, did he? A. Yes, sir, he did.

"Q. Said he was personally buying them? A. Yes, sir.

"Q. You are sure of that? A. Yes, sir, I am sure of it, positively".

Plaintiff's witness, Pubanz, testified that he was the bookkeeper for the plaintiff and had been such since March 1930; that he had several conversations with defendant about the account; that at one time in 1941 defendant called him by telephone and complained about the account having been placed in the hands of an attorney for collection, saying that "it could have been arranged, that he had written me a letter in detail explaining how it could be arranged, and I had never received a letter, and I asked him at that time for a copy of the letter and I never received a copy of the letter. Q. Did Mr. Block dispute any part of that account at that time? A. No, Mr. Block never disputed any part of that account".

He further testified that he talked with defendant concerning the goods sold; that these talks started in 1931. "Right along from 1933 on up. * * * We had some talks in the first part of 1933 or in the early part of 1933"; that defendant never, at any time, disputed the account. "The Court: What was the date of that conversation or approximately. Witness: Well it started out in 1932 and 1933. We did business with him right along. Q. What did Mr. Block say to you with reference to being the owner of this equipment? A. He always told us to charge it to him".

On cross-examination he testified that he had some conversations with defendant prior to 1933; that he did not mean to say that all of the conversations occurred after January 1, 1933; that he had some before that; that he never heard that defendant had nothing to do with the theatre until after 1933; that he never received a check from the Williams or the Edmond Theatre Company. He was shown a check dated December 26, 1932 for $6.38, one dated February 8, 1932 for $7.48, and one dated October 25, 1932 for $90, all payable to the plaintiff and signed by the Edmond Theatre Company by "Nate Block, President". All of these checks bore the stamped indorsement of the plaintiff. The witness further testified that he had never heard of the Williams or the Edmond Theatre Company until after suit was brought, although he knew that a man by the name of Williams was connected with the Orpheum Theatre; that "I never paid any attention to checks when they came in".

The witness further testified that on February 24, 1932, defendant gave him a check for $487.09 (this check was signed in the same manner as the ones last mentioned); that, at that time, defendant said: "We will bring this account down to a certain point. We will bring this account down to here, I will give you $487.09 which will leave me owing you $2,300".

There were a great number of invoices introduced in evidence by the plaintiff and all of them show that the goods were charged to the "Orpheum Theatre Company". However, the account was kept in the name of Orpheum Theatre, "Nate Block". There are no letters from the defendant, or any writings to which he was a party which, standing alone, tend to show that he purchased those articles covered by the account and sold prior to 1933, or that he acknowledged his liability to pay for the same.

Defendant's evidence tends to show the following: That during the year 1930 he and Mary L. Strop were the owners of the Orpheum Theatre; that prior thereto they leased the property to the Williams Theatre Company and that that theatre company afterwards operated the theatre; that the name "Williams Theatre Company" was changed to "Edmond Theatre Company" on January 29, 1932; that the lease between Mary L. Strop, the defendant and the Williams Theatre Company was terminated prior to January 1, 1933 for non-payment of rent and, thereafter, on January 7, 1933, the theatre was leased by Mary L. Strop and the defendant to the O. T. Amusement Company, which was operated by the Dubinsky Brothers. The Dubinsky Brothers went into possession of the theatre and within a week thereafter it was totally destroyed by fire. The owners of the property exercised their option, under the lease, to rebuild the building and did rebuild it. In connection with this work plaintiff furnished several items of merchandise for which, as before stated, defendant admitted that he was under obligation to pay.

Defendant testified that the Williams Theatre Company was composed of himself, Mary L. Strop and Phil Strop as stockholders (we assume from his testimony that this was also true as to the Edmond Theatre Company); that he was president of the Williams Theatre Company. Over the objection of the plaintiff he was permitted to testify that the Williams Theatre Company purchased the equipment covered by the account sold prior to 1933, and that he did not "personally" purchase any of those items.

He further testified: "Q. Mr. Block, you heard Mr. Pubanz and you heard Mr. Amoneno testify as to certain conversations that you personally were purchasing this material from 1930 up through 1933. Did you ever make any such statement as that to them? A. I positively did not. Q. And you deny all those statements which they attribute to you, is that correct? A. Yes, sir, that is correct".

He further testified that he a...